This matter is before the court on a motion for a pretrial evidentiary
ruling on the question of whether character evidence is admissible in
a civil case under F.R. Ev. 404(a).

This is an action by the beneficiary of a life insurance policy against
the insurance company which issued the policy. There is no dispute that
the plaintiff's deceased husband took out a policy on his life with the
defendant insurance company and that the premiums were properly paid.
However, the insurance company defends on the ground that there were material
omissions from the application. More particularly, the insurance company
contends that the insured decedent failed to disclose that he was under
treatment by a psychiatrist for depression. Plaintiff responds that the
application was completely answered and that any inaccuracies were not
a material consideration in the issuance of the policy.

The plaintiff in the pending motion has requested a ruling from the court
that evidence is admissible from witnesses who would testify that the
deceased insured was a man of good character who would be unlikely to
submit a fraudulent or erroneous application.

After careful consideration, the court concludes that it is the intention
of Rule 404(a) to exclude evidence of a character trait in civil cases,
except where character itself is an element of the claim or defense, as
in cases involving defamation.

A leading text states that the following was the situation prior to the
adoption of the Federal Rules of Evidence.

The common law relaxed its ban upon evidence
of character to show conduct to the extent of permitting the accused to
open the door by producing evidence of his good character. This was a
special dispensation to criminal defendants whose life or liberty were
at hazard. Should the same dispensation be accorded to the party in a
civil action who has been charged by his adversary's pleading or proof
with a criminal offence involving moral turpitude? The peril of judgment
here is less, and most courts have declined to pay the price in consumption
of time and distraction from the issue which the concession entails. A
growing minority, however, has been impressed with the serious consequences
to the party's standing, reputation and relationships which such a charge,
even in a civil action, may bring in its train, and has followed the criminal
analogy, by permitting the party to introduce evidence of his good reputation
for the trait involved in the charge. The balance of expediency is a close
one.

McCormick on Evidence, §192 at 459-60 (2d Ed. 1972)....

It may be noted that the text [of FRE 404] does not specifically state
that evidence of a relevant character trait is not admissible in civil
cases. Nevertheless, this result seems to be implicit by the use of the
terms "accused,'' "prosecution,'' "victim,'' and "crime.''

Plaintiff argues that certain recent decisions militate against the conclusion
that the rule of exclusion of character trait evidence from civil cases
is absolute.

Most particularly, plaintiff cites Crumpton v. Confederation Life Insurance
Company, 672 F.2d 1248 (5th Cir. 1982). This was a case somewhat similar
to the case at bar. In Crumpton, the appellate court affirmed
the admission of evidence of a peaceable character of an insured who had
been shot to death. Whether or not the death was "accidental'' within
the meaning of the policy depended on whether the insured had approached
the woman who shot him with the intent to molest her....

The court advanced several grounds for admitting the evidence, one of
which was that it felt that the decedent's character was at issue. The
court also stated, however, that it felt that "the unusual circumstances
here placed the case very close to one of a criminal nature.'' 672 F.2d
at 1253. Therefore, the court held that evidence would be admissible even
if character were not in issue....

Thus by implication, when evidence would
be admissible under Rule 404(a) in a criminal case, we think that it should
also be admissible in a civil suit where the focus is on essentially criminal
aspects, and the evidence is relevant, probative, and not unduly prejudicial.

Id.

With respect, this court must disagree with the Crumpton decision.
It seems beyond peradventure of doubt that the drafters of F.R. Ev. 404(a)
explicitly intended that all character evidence, except where "character
is at issue'' was to be excluded. After an extensive review of the various
points of view on this issue, the Advisory Committee expressly stated,
"[i]t is believed that those espousing change (from the view of excluding
character evidence in civil cases) have not met the burden of persuasion.''
This language leads to the inevitable conclusion that the use in Rule
404(a) of terms applicable only to criminal cases was not accidental....

This court believes that the language of the rule, as originally drafted
by the Advisory Committee and ultimately approved by Congress, has the
effect of a statute in excluding the proffered evidence here, even though
the case may be considered as analogous to a criminal prosecution. (Here
some of the elements of mail fraud or larceny by trick are arguably present.)
The court regards itself as not having any discretion in this matter by
reason of the explicit language of the rule, since it is clear that this
case is not one where character is at issue.

Therefore, the preliminary motion seeking admissibility of the evidence
must be denied. The proffered evidence will be excluded at trial.